Comment: Audacity and Mendacity

The audacity and mendacity of the Bush Administration mount by the day. This Presidency has become an increasing menace to our constitutional system.

Days after the Katrina disaster, and minutes after he woke up to it, Bush promised to cooperate fully with any Congressional inquiry. “Congress is preparing an investigation, and I will work with members of both parties to make sure this effort is thorough,” he said.

But that was then. Now Bush is buttoning the lips of the entire Administration.

Even Senator Joe Lieberman, who usually is so eager to sit on the President’s lap, has registered his displeasure.

“Almost every question our staff has asked federal agency witnesses regarding conversations with or involvement of the White House has been met with a response that they could not answer on direction of the White House,” said Lieberman, who is the top Democrat on the Senate Homeland Security and Governmental Affairs Committee.

FEMA lawyers advised Heckofajob Brownie “not to say whether he spoke to the President or the Vice President, or comment on the substance of conversations he had with any other high-level White House officials,” Lieberman said.

The White House gag order on Katrina is “completely inappropriate.”—Senator Susan Collins, Republican of Maine

No, that would require accountability, and that’s the last thing this White House wants. It views itself as accountable to no one.

And so it doesn’t hand over documents to Congress to let our elected officials properly investigate the NSA scandal. And it defends warrantless domestic spying with pure chutzpah and imperious assertions.

But before I get into those, let me just point out that the President straight up lied about warrantless spying when he was running for reelection.

“Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order,” he said on the campaign trail. “Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”

Attorney General Alberto Gonzales was no more forthcoming. At his confirmation hearings in January 2005, Senator Russ Feingold asked Gonzales: “Does the President, in your opinion, have the authority, acting as commander in chief, to authorize warrantless searches of Americans’ homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country?”

Gonzales dodged that the first time, and when Feingold followed up in a more general way—whether “the President has the constitutional authority, at least in theory, to authorize violations of criminal law”—Gonzales said, “Senator, in my judgment, you have phrased sort of a hypothetical situation.”

But there was nothing hypothetical about it, though at his February 6 testimony, under grilling from Feingold, Gonzales maintained the illusion.

After The New York Times finally exposed the NSA program, the Bush Administration aggressively pushed some specious—and dangerous—arguments in support of warrantless domestic spying.

Bush said at a January press conference that the program is “designed to protect civil liberties.” If the press corps had a proper sense of humor, it would have met that comment with riotous guffaws.

““Mr. Gonzales misled me and the Senate Judiciary Committee under oath about whether the President could spy on Americans without a warrant.”—Senator Russ Feingold

The Justice Department laid out its rationale for the spying in a document entitled “Legal Authorities Supporting the Activities of the National Security Agency.” Unlike Bush, it acknowledged that “individual privacy issues at stake may be substantial.”

But those “substantial” interests pale in comparison to the need to fight Al Qaeda, it argued.

“The Government’s overwhelming interest in detecting and thwarting further Al Qaeda attacks is easily sufficient to make reasonable the intrusion into privacy,” says the Justice Department document.

The gist of the Justice Department’s argument, which Gonzales kept repeating, is that the President’s “inherent constitutional authority as commander in chief” and the Congressional Authorization for Use of Military Force (AUMF) right after 9/11 give him all the power he needs to eavesdrop in the United States without a warrant.

It’s not an easy argument to make, since the Foreign Intelligence Surveillance Act stipulates that getting a warrant from the FISA court is the “exclusive means” by which the NSA may engage in domestic surveillance. FISA requires a warrant except in the first fifteen days of an emergency or in the first seventy-two hours of an exigent search, after which the Administration must apply retroactively for the warrant.

But the Justice Department says “FISA expressly contemplates that the Executive Branch may conduct electronic surveillance outside FISA’s express procedures if and when a subsequent statute authorizes such surveillance.”

That “subsequent statute,” the Justice Department says, is the Congressional authorization of force. But that authorization doesn’t mention amending FISA. And, in fact, the Administration tried to get language into that authorization that would have permitted such warrantless eavesdropping, but the Senate didn’t go along, as then-Senate Majority Leader Tom Daschle has noted.

“Literally minutes before the Senate cast its vote, the Administration sought to add the words ‘in the United States and’ after ‘appropriate force’ in the agreed-upon text,” Daschle wrote in The Washington Post on December 23. “I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.”

Yet this is the very authority that the Justice Department now claims for the spying.

In the Youngstown Steel case during the Truman Administration, a precedent-setting case on Presidential overreaching, Justice Felix Frankfurter demolished a similiar argument: “It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred. It is quite impossible, however, when Congress did specifically address itself to a problem . . . to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is . . . to disrespect the whole legislative process and the constitutional division of authority between President and Congress.”

Nor has the Administration sought to amend FISA to reflect its current interpretation. It considered it, though.

“We had discussions with Congress in the past—certain members of Congress—as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible,” Gonzales said at a December 19 press briefing.

This is a telling confession. “The Administration cannot argue on the one hand that Congress authorized the NSA program in the AUMF, and at the same time that it did not ask Congress for such authorization because it feared Congress would say no,” fourteen distinguished constitutional lawyers wrote in a letter to Congress published in The New York Review of Books.

But when the Justice Department feels it may be losing, it pulls out this trump card: Even “if FISA could not be read to allow the President to authorize the NSA activities during the current Congressionally authorized armed conflict with Al Qaeda, FISA would be unconstitutional.”

Why? Because it interferes with the President’s power as commander in chief.

Here the Justice Department shows just how unlimited it believes that power is.

“The President has inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes,” the Justice Department asserts. It says there is a “serious constitutional” question as to whether such spying “is such a core exercise of commander in chief control over the Armed Forces during armed conflict that Congress cannot interfere with it at all.”

Clearly, the Justice Department believes that to be the case. “The NSA activities lie at the very core of the commander in chief power,” it states. This is especially true in wartime, it argues.

But get this: The Justice Department thinks the President may be able to spy on us without warrants even when there is no war!

“Even outside the context of wartime surveillance of the enemy, the source and scope of Congress’s power to restrict the President’s inherent authority to conduct foreign intelligence is unclear,” it states. “The President’s role as sole organ for the Nation in foreign affairs has long been recognized as carrying with it preeminent authority in the field of national security and foreign intelligence . . . . It is clear that some Presidential authorities in this context are beyond Congress’s ability to regulate.”

In any event, Bush argues that Congress already wrote him a blank check. As the President put it in a speech in January in Kansas, “Congress gave me the authority to use necessary force to protect the American people, but it didn’t prescribe the tactics.”

And he evidently believes there is nothing—neither the Constitution, nor statutes, nor Congress, nor the courts—that can now limit his choice of tactics.

With these two rationales, Bush could send F-16s to attack a residential area in, say, Indianapolis, if he thought there was someone with an Al Qaeda link there.

The Justice Department also willfully and repeatedly misreads the Supreme Court’s 2004 decision in the Hamdi case. Writing for the majority, Sandra Day O’Connor asserted, “A state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

The Justice Department’s document notes this comment but amazingly claims it doesn’t apply. Gonzales’s lawyers contend that the Hamdi decision affirms that the Congressional authorization of force “gave its express approval to the military conflict against Al Qaeda and its allies and thereby to the President’s use of all traditional accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad.”

But the Court did not, even by inference, endorse such surveillance. Hamdi was captured on the battlefield while opposing the United States, and the Court stressed that in this “limited category,” the detention of such a person “is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.”

It’s quite a stretch from holding a battlefield combatant to eavesdropping without a warrant on U.S. citizens who may be linked to Al Qaeda or may be linked to someone else who may be linked to Al Qaeda.

The Court in Hamdi intentionally sidestepped questions about the reach of the President’s commander in chief powers. But it did affirm the role of the judiciary, a role that Bush wants to cut out as far as NSA spying goes. “We necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts,” O’Connor wrote. And she explicitly warned about an executive branch approach that “serves only to condense power into a single branch of government.” (The italics are hers.)

In his State of the Union speech, Bush regurgitated the two main chunks of the Justice Department’s argument. But, as he likes to do, he framed it in a dishonest manner.

He said: “If there are people inside our country who are talking with Al Qaeda, we want to know about it because we will not sit back and wait to be hit again.”

But no one is suggesting that the United States “sit back.”

““The President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.”—Letter to Congress signed by 14 constitutional scholars

All critics want is for Bush to follow the law and go to the FISA court to get a warrant to wiretap that call. The FISA court has granted 99.97 percent of Bush’s requests for such warrants. What’s so hard about asking for a warrant? The fact that the Bush Administration chose to bypass the court suggests that it was engaging in a vast spying enterprise without probable cause.

Bush pretended in his State of the Union address, just as he has in his actions, that the FISA law doesn’t even exist. He didn’t mention it at all, even as he tried to defend the warrantless spying. He added that “appropriate members of Congress have been kept informed,” but the Congressional Research Service studied this and concluded that Bush did not fully inform the intelligence committees and thus acted in a way “inconsistent with the law.”

That is the trademark of this Administration: “inconsistent with the law.” Or, more accurately, scornful of the law.